Cabinet’s ‘unlawful advice’ on Emergency can be challenged, court told

 

Opposition leader Anwar Ibrahim says the court should have granted him leave to challenge the emergency declaration.

PUTRAJAYA: The High Court ought to have given Anwar Ibrahim leave to challenge the proclamation of emergency as the advice given to the Yang di-Pertuan Agong by the prime minister and his Cabinet was unlawful, the Court of Appeal heard today.

Lawyer Ramkarpal Singh said the Muhyiddin Yassin administration could have relied on the movement control order and the Prevention and Control of Infectious Diseases Act to combat the Covid-19 pandemic instead of resorting to emergency ordinances.

“The advice to the King was unlawful as it was irrational and unreasonable, and must be subject to court scrutiny,” he said in his online submission before a three-member bench chaired by Has Zanah Mehat.

The other judges were Vazeer Alam Mydin Meera and Ahmad Zaidi Ibrahim.

Anwar is appealing against an April 22 ruling by judge Mariana Yahya, who declined to give leave and hear the merits of the complaint.

The judge had said the ouster clauses in Articles 150(6) and (8) of the Federal Constitution were valid and excluded judicial review of matters relating to the proclamation of an emergency and resulting ordinances by the King.

Mariana also said the advice of the prime minister did not amount to a decision which is grounds for dismissing the application filed in January.

The opposition leader sought a court declaration that the decision by the Cabinet, led by Muhyiddin, to advise the King to promulgate Section 14 of the Emergency (Essential Powers) Ordinance 2021, which resulted in the suspension of Parliament, was unconstitutional, unlawful, had no effect and was ultra vires.

Anwar also sought a declaration that Section 14 was inconsistent with Article 150 (3) and (5) of the Constitution, and therefore was unconstitutional and invalid.

He had wanted an order of mandamus to direct Muhyiddin to advise Sultan Abdullah Sultan Ahmad Shah to repeal the said section.

The emergency came to end on Aug 2 but the ordinances remain in force until February since the King did not revoke them nor have they been annulled by Parliament.

Ramkarpal also said that the court must be allowed to exercise its supervisory jurisdiction over administrative and executive decisions.

“The advice to the King to proclaim an emergency to fight Covid-19 early this year resulted in frustrating the functioning of a democratic Parliament,” he said.

Ramkarpal said Mariana dismissed the leave application by relying on Articles 150 (6) and (8), which stated that the validity of an emergency proclamation and ordinance could not be challenged on any grounds.

Lawyer Sangeet Kaur Deo, who assisted Ramkarpal, submitted that the Executive’s advice is still subject to legal challenge although the emergency proclamation and ordinances are made in the name of the King.

Senior Federal Counsel S Narkunavathy said Article 150 on the proclamation of emergency is clear that courts are ousted from inquiring into a complaint and this has been affirmed by Federal Court ruling.

“The emergency declaration is not amenable to judicial review though Article 40 (1A) states the King acts on the advice of the prime minister and his Cabinet.

Has Zanah adjourned the hearing, saying the bench needed more time to deliberate as substantive issues had been raised. - FMT